Gov. Rick Scott is looking for judicial applicants with character, who know the limits of their office and who will also practice judicial restraint, according to Scott’s general counsel, Charles Trippe.
Trippe attended the Bar Board of Governors meeting Dec. 9 to discuss the role of his office and Scott’s approach to selecting judges and appointing members to the state’s 26 judicial nominating commissions.
He also took questions from board members, which ranged from why Scott had rejected certain JNC-nominated slates of judicial candidates to the importance of diversity in the review of nominees.
There also was praise for Scott’s proposed 2011-12 budget, which does not cut funding for the courts and seeks to stabilize court funding by using more state general revenues and decreasing the reliance on fluctuating court filing fees.
Trippe said that part of the general counsel’s tasks is to advise the governor on judicial nominations. He said Scott is looking for nominees with character, academic qualifications, trial skills and experience, judicial temperament, respect among peers and commitment to judicial restraint.
The governor also wants diversity, including geographic and area of practice, as well as gender, racial and ethnic variety.
“We interview each nominee who is sent to us by the JNC,” Trippe told the board.
“I make it a point to attend each and every one of those interviews. We make it a point to take the time with each nominee to make sure they feel they have an opportunity to be heard,” he said.
Trippe’s staff checks references and makes other calls to find out about the nominees.
When it comes to evaluating the candidates, Scott wants “first and foremost, character,” Trippe said.
“We really do want to make sure that people who are appointed to the bench are of the highest character and also have the personality and demeanor it takes to be a successful and proper judge,” Trippe said.
“I think, and I know the governor agrees, that the worst type of personality to put on the bench is the sort of person who would abuse his or her power. So any indication that this has been a problem in the past or that it might be an issue is clearly a red flag,” he said.
He acknowledged that evaluating judicial restraint can be tricky.
“I can’t really define it; it comes under the same category as pornography was to (former U.S. Supreme Court Justice) Potter Stewart: I know it when I see it, and I know its absence when I see it,” Trippe said.
“It involves the separation of powers, understanding that the judicial officer’s role is to interpret the law and to apply it to individual cases, and not to veer toward legislative. It’s crucial as well to the goal of limited government, which, of course, is important to the separation of powers,” he said.
“A restrained judge, of course, follows precedent wherever possible, and that leads to predictability of the law.”
America’s commitment to the rule of law has allowed it to prosper, he said, but that commitment will be strained by the challenge from rising economic powers, such as China and India.
“Will the rule of law have the role it has had so far, because it is the most precious thing we have in this country?” Trippe said. “Our view is that judges contribute to that and protect it by acting with what we call ‘judicial restraint.’”
Trippe is from Jacksonville. As a partner with Moseley, Prichard, Parrish, Knight & Jones, Trippe practiced in the area of complex civil litigation.
He took the position as Scott’s general counsel on March 1.
Here is an edited transcript of the questions board members asked Trippe and his answers:
Why did the governor recently reject slates of judicial nominees from the First District Court of Appeal JNC and the Fourth Circuit JNC and request new slates?
“It’s the governor’s prerogative, and it’s his right to send a list back. Once we reviewed the list, we felt the goal of judicial restraint would be better served with other folks.” Trippe said he didn’t recall the precise reasons for rejecting the First DCA list, but with the Fourth Circuit slate, “I believe that all three of those folks were essentially in the same line of work. They were all personal injury lawyers and they — this goes to the issue of diversity, in some sense — were all white males of approximately the same age. And we wanted to see more diversity, professionally.”
Why did the governor request a new slate of candidates for a recent vacancy on the Fourth DCA, when the first list included two men and a woman?
“I remember that. When we looked at that group, we just thought that we would further our goals in getting the candidates we wanted by asking for another list. I’m not sure that was diversity of outlook on that group. … We really do want the most qualified people, regardless of their outlook, their station in life … for judicial office.”
How does the general counsel staff and the governor evaluate a judicial candidate’s or a JNC applicant’s commitment to judicial restraint?
“Well, we ask around. We ask about their attitude toward the legal profession, and as to who would make a good judge, who would not make a good judge, who would they be likely to recommend, who would they be likely not to recommend. What they do, what they think, what is their life’s work … that sort of thing.”
Several recent judicial appointments by the governor have either been current assistant state attorneys or former prosecutors. Is there something about government lawyers or prosecutors that the governor likes?
“Miami-Dade is one of those areas where it’s very difficult to get people from the private sector, in private practice, to apply. There were three appointments from Miami made yesterday (Dec. 8). One was a prosecutor, one was a lawyer who works for the Department of Children and Families Children’s Legal Services … and there was a sitting county judge (appointed to the circuit bench). But the answer to your question is there have been a lot of prosecutors in Miami. … That, I think, is due to the fact a lot of these folks are going to face election immediately, and there’s a very large disparity between what they make and what lawyers in private practice make.”
How does the governor review the Bar’s nominees for JNCs?
“They are evaluated the same way the governor does for his direct JNC appointments.” Trippe also noted that former Gov. Charlie Crist had not made several of his JNC appointments, so Scott has appointed about 40 percent of the JNCs’ membership since taking office.
Does political party affiliation have any bearing for the JNCs or for appointment to the bench?
The governor has appointed applicants from both parties. “There’s no litmus test … for political party or for political outlook. The important thing are these issues of ‘how will judges behave?’ and ‘will this person be a judge who exercises restraint and behaves the way the governor expects?’”
The Bar is grateful to Gov. Scott for maintaining funding for the courts in his recommended budget and also for proposing using more general revenue to support the courts in place of unpredictable filing fees and other revenues generated by the courts. That aside, what does the governor expect of JNC members insofar as to how they treat applicants during interviews?
On judicial funding, “It is very important to him, as many of you will know. He was a (Texas) lawyer and a pretty good lawyer. He has tremendous respect for lawyers and judges and does not want to see the judiciary go through what it went through last year (with massive shortfalls in revenues).” On how JNCs treat judicial applicants, “I make an effort to interview each nominee, and we try not to treat it as any sort of adversarial process. In other words, we treat them with respect in the way we speak with them, and we make it a practice not to blindside them during their interview with information that has been developed from some (outside) source. If we think there is something that needs to be addressed — and we have more sources of information besides references and material that come to our attention — we will try not to be confrontational about information that needs to be explained, whether it’s embarrassing personal information … or things that contradict the application. It’s not uncommon for things to crop up on background (checks) that have not been disclosed — and there’s usually a good reason for that.
“We try not to make this a gotcha session or mousetrap. I’m aware that it has happened at JNCs before. That is something that was discussed at the recent (JNC) training session. Frankly, if I thought that a person was doing that on a JNC, I would not recommend to the governor that that person be reappointed to that JNC.”